Terrain Magazine

Winter 2002

For more information, contact:

Bradley Angel Greenaction

(415) 248-5010

Civil Wrongs
Trials of Environmental Justice

From the Civil Rights Act to a Clinton executive order, federal policy is supposed to prevent toxic burdens on low-income communities of color. It hasn’t. And sometimes justice can’t wait.

by Justin Scheck

In 1996, Mohave Indian Dave Harper got some advice that may one day save lives on the Colorado River Indian Reservation, if it's not too late.

Harper, a California resident at the time, was working on a successful campaign to oppose a radioactive waste dump in California's Ward Valley. But an ally recommended that Harper look at pollution sources on the 3,000-member reservation in Parker, Arizona, where he grew up.

At the time, Harper thought he didn't have much to investigate.

In 1990, the tribal council had allowed Westates Carbon, a Palm Desert, California-based waste management company, to build a carbon filter recycling plant on the reservation. By all indications, the plant should have been clean. In an information sheet issued during the facility's permitting process, Westates - a subsidiary of the now-troubled French multinational Vivendi - said that the plant was an "environmentally sound" alternative to discarding used carbon filters. It claimed the plant would emit "basically 180-degree Fahrenheit steam." At the time, the EPA permitted the facility as a non-hazardous recycling plant.

What Harper found - what he says neither Westates nor the EPA ever told reservation residents - was how dirty those carbon filters were. In fact, the filters had absorbed poisons from a wide array of industrial facilities - and some of the most toxic Superfund sites in the country. The plant torched those filters to burn the toxics off - straight into the air breathed by reservation residents.

In essence, the reservation was the final resting ground for the nastiest pollution in the country. After burning it, the company was reselling the clean carbon in new filters. The plant, still operating without a hazardous waste permit 11 years later, continues to take the EPA's filters.***

By 1997, thanks to the work of Harper, his mother Mamie, other tribe members, and San Francisco-based Greenaction, the tribe had a copy of Westates's own list of emissions. From acenaphthene to zinc, it includes 37 toxic substances, with a litany of potential health hazards from forelimb hair loss and changed organ weight, to offspring cleft palate, cancer, "shortened lifespan," and death.

"The EPA has constantly said 'gee, we're sorry we didn't act on this,'" said Harper. "'We could have, we should have, we would have. It's one of those things that fall through the cracks.' [But] the question is how to regulate it. It's already operating, and no one has answered that."

Westates manager Monte McCue and Eric Shepard, the tribal council's attorney general, did not return calls for comment on this story. EPA site supervisor Steve Armann said the Weststate's plant was releasing only "small amounts" of chemicals, in compliance with federal law. "We don't have any questions," he said, "about the reliability of [Westates] data."

But as early as 1991, Armann admitted, Westates and the EPA knew that carbon filter recyclers produced hazardous emissions. It's not clear what the Bureau of Indian Affairs, which approves all reservation contracts, or the tribal council knew; the council would not return phone calls, and BIA real estate supervisor Goldie Stroub would only say that the emissions data "was released in a public meeting in 1991 or 1992 or thereabouts," but not mailed to tribal members. But until Harper moved back to the reservation in 1997, no one had informed the tribe's membership at large.

To hear environmentalists tell it, the story of the Colorado River Indian Reservation represents a disturbingly common phenomenon throughout the nation: Regulators like the EPA, charged with protecting environmental health, instead sanction what amount to toxic assaults on vulnerable communities. The agencies allow companies - from Westates to Oakland's Integrated Environmental Systems, to Romic Environmental Technologies in East Palo Alto - to operate without full environmental review or permit. The regulators rely on methodology that seeks acceptable doses of compounds. They do not independently verify the companies' emission levels of those compounds. Then they issue the statement that is the boon of every investor seeking to fend off community opposition, and the bane of every family suffering asthma near smokestacks: "The facility is in compliance with the law." But the plight of Dave Harper also shows the increasingly enormous odds communities like his must overcome to live safely - at least by means of administrative or court action. Often, other means become necessary.

To Harper, it's no mystery why Westates chose to burn its poison on the reservation, where state law doesn't apply: "[It's] an environmental justice issue," Harper said. "You do it in a low-income community. And you put it where there is no law to regulate it. The tribe has no laws to regulate it. Westates says they are governed by federal law, and that it is more stringent than state law," he said. "But we know that's bullshit."

The real shock has come in assessing the prospects of changing the situation. The tribal council could vote to shut down the facility, although if it did so without the EPA's declaring the plant unsafe it would be vulnerable to lawsuits from Westates claiming a breach of contract.

For now, mindful of delicate relations with the tribal council, Harper is focusing on simply securing emissions data, educating residents, and generally raising awareness against the plant - not only against its hazards, but its religious encroachment: it blocks views and access to avi suquil, a sacred mountain directly connected to the Mohave's place of spiritual origin.

But what would happen if the tribe sought legal remedies to end the plant's hazards?

According to activists, lawyers, and legal advocates citing years of precedents, a series of legal loopholes and court developments have blocked virtually all legal recourse for environmental justice for people like Dave Harper. Despite a few Clinton-era measures, any environmental justice complaints or suits filed by Harper's reservation members against the plant would face virtually insurmountable legal obstacles. That's true for any community with analogous grievances.

On paper, this seems implausible. Presumably, US law would provide ample tools for residents not only to shut down such a facility but also to win appropriate damages. After all, environmental justice is not a new concept. As far back as 1964, Congress passed the Civil Rights Act. Its Title VI bars federally funded projects - which includes most projects permitted by state agencies - from racial or economic discrimination. Theoretically, Title VI federal protection should have become stronger in the past decade. In 1993, the EPA officially began reviewing Title VI complaints. And in 1994, President Clinton signed an executive order mandating that each arm of the federal government "shall make achieving environmental justice part of its mission."

But for residents like Harper, trying to stop environmentally unjust facilities like Westates, those laws and policy changes have helped little.

Because Westates is on a reservation, where pollution is regulated by the EPA, not the state's environmental agency, Harper's situation is a bit of an anomaly. The tribe actually has no formal recourse to the Civil Rights Act. That law requires a civil rights review process only for state and local agencies receiving federal funds - not for federal agencies themselves. In effect, the EPA gets a free ride.

Even if Harper were eligible to file a Title VI complaint with the EPA, he would face the same obstacles as countless low-income rural and urban communities of color nationwide: Based on the history of environmental justice complaints to the EPA, Harper would have only a one-in-four chance of getting a review, could not shut down a hazardous facility while the review was under way, and would have to wait as much as a decade for a decision, which would almost certainly not be favorable.

And even if Harper could, like other communities, take Westates and the EPA to court on Title VI grounds, he would have to prove the same impossibilities those communities must prove: that a facility actually intended to discriminate rather than just make money. And as for Clinton's lofty-sounding Executive Order, which does apply to the EPA and to the Westates situation, the order explicitly says that none of its provisions can be enforced. Therefore, Harper could not sue in the civil court to enforce the requirement that federal agencies uphold environmental justice.

"Clinton was good on lip service," said Luke Cole, head of the Center on Race, Poverty, and the Environment and an attorney who has filed numerous Title VI complaints and lawsuits. "But there's no substance there."

The Civil Rights Act

Title VI of the Civil Rights Act, traditionally the statute used to litigate environmental justice claims, has become nearly useless.

Before the current conservative-leaning Supreme Court took shape, Title VI was assumed to apply to discriminatory effects, regardless of intent. As a result of recent court rulings, especially the 2001 Alexander v. Sandoval, Title VI now outlaws only intentional discrimination. Even if a project has discriminatory effects, Title VI litigation would require prosecutors to prove clear intent to discriminate - a nearly impossible standard.

"[How can you] prove what's in their head?" asked Tom Henderson, chief counsel of the Lawyers' Committee on Civil Rights Under Law.

As a result, a company could site a toxic plant in a poor community of color, denying it was because of residents' race, perhaps claiming the land is simply cheaper than elsewhere in town. Without proof of intent, a judge would have to accept that.

Advocates like Cole must now litigate many environmental justice cases through other statutes, including existing environmental laws like the Clean Air Act. These tactics can result in individual successes. But the restrictions leave no precedent in environmental discrimination law. Without such precedent, courts can repeatedly defer to regulatory agencies - even when their decision-making process is the very subject of the case, as it would be on Harper's reservation, said Lawyers' Committee director Barbara Arnwine.

"It's unfortunate," said Cole "that the very real civil rights violations occurring are not actionable under civil rights law."

Since the courts don't work, residents are supposed to have another option: filing complaints under the EPA's Clinton-era Title VI review process. But since the program's inception in 1993, according to Cole, the EPA has received 124 environmental discrimination complaints filed under Title VI of the Civil Rights Act; none has been decided in favor of the complainant. Eighty of the complaints were dismissed without review.

When the EPA has chosen to review a case, it has typically taken years. Cole has had numerous Title VI cases under EPA review since the mid-1990s, he said. During this time, the challenged projects are permitted to move ahead. And that is not good news for the communities involved. For nearly five years, for example, the EPA has been sitting on a Title VI complaint to protect the school population of California's Salinas River Valley from pesticides. The complaint alleges that students spend their days next to massive farms, at risk of breathing methyl bromide, a heavily used agricultural pesticide that can cause hemorrhaging and organ damage in acute doses and dizziness, hallucinations, depression, and sensory loss after months or years of chronic exposure.

The complaint, filed by Cole's Center on Race, Poverty, and the Environment, says school children of color suffer a much greater risk of exposure to the deadly chemical than their white counterparts. The complaint found cases where agribusiness applied at least 35,000 pounds annually of methyl bromide within 1.5 miles of a school. In those instances, it found, the student population averaged 82% students of color - more than 22% higher than the state average. The California Department of Pesticide Regulation claims that plastic covering and other measures have reduced methyl bromide drift. But the complaint alleges that Monterey County has allowed disproportionate amounts of the chemical in minority areas. As the complaint languishes, the spraying has continued, often a stone's throw from schools. "The kids are exposed," said Jesus Lopez, an organizer with Californians for Rural Legal Assistance. "I don't think that's right."

Clinton's 1994 executive order hasn't helped reverse poisonings in Salinas River Valley - or anywhere else. Each federal agency has a formal environmental justice office, and statements on how environmental justice will be met. But without the right to litigate, "you can't enforce [the order] against an agency," Henderson said.

Above all, activists say, none of the federal policies allow residents to challenge the regulators' own rules, which contain a fundamental flaw: "The system is set up to sanction pollution," as Greenaction's Bradley Angel put it, "not to prevent it." Relying on controversial methodology, which usually involves dosing an animal to set a standard for humans, regulators establish "acceptable" health levels for a particular chemical. But they then monitor the levels of that one chemical separately from others, and check only one particular source of the chemical at a time, ignoring any other pollution in the area, adverse chemical combinations, or any long-term cumulative impacts of the total toxic load on people or ecosystems.

"Cumulative impacts are one of the centerpieces of environmental problems," said Angel, "particularly in communities where environmental justice is an issue. Because that's where the multiple sources of pollution are."

In a 1997 Title VI complaint, for example, residents of Oakland's mostly African-American Chester Street Block Association charged that a state highway project had been causing racially discriminatory impacts - uncontrolled noise, diesel traffic, and kicking up of dirt and vinyl chloride from previous industry. But the complaint, still pending after five years, could only address the effect of the highway project itself. It is ignoring the context: that the neighborhood has some of the worst air in the Bay Area. Across the street from what has become Prescott Park, the playground designed to mitigate adjacent freeway work, the EPA sent streams of dioxin into the air when it burned off vinyl chloride deposits in 1997, all the while falsely claiming its incinerator emitted "salt and steam." Each day more than 9,000 diesel trucks drive to and from the Port of Oakland, blanketing the neighborhood in particulate matter; by 2010 the port hopes to double the number of trips through the neighborhood, according to Citizens for West Oakland Revitalization. And two blocks away from Prescott Park, the Red Star Yeast plant emits carcinogenic acetaldehyde on a daily basis. According to a 2002 Pacific Institute study, toxic emissions nearly doubled in West Oakland from 1996 to 1998, while most of the city saw a decline. Partly as a result, a child in West Oakland is over eight times more likely to be hospitalized for asthma than her peers in the rest of California, according to the Pacific Institute.

"The air district says, 'We don't have rules that allow cumulative analysis in West Oakland,'" said Greenaction's Angel. "The same with the EPA with the Colorado River Indian tribes. Then what is their environmental justice policy for?"

But the very existence of those policies does bring one advantage - a standard agencies can be held to.

Having environmental justice policies "makes it harder for agencies to rubberstamp the polluter," says Angel, pointing to the EPA's work on behalf of Westates carbon. "We caught them with their pants down. The EPA has a hard time explaining why it is sending Superfund waste to a facility that lies about its emissions, is not permitted to burn hazardous waste, and is next to a sacred site. They're scrambling. We've forced them to meet, to involve high level staff, to send resources to respond." In August 2002, despite Armann's sanguine assessment and only after years of pressure from Harper and the others, the EPA finally agreed to test emission levels on the reservation.

But in the end, report activists, the most effective tool may be one of last resort - direct action. That may be what they resort to in West Oakland, where the Chester Street Block Association has been spearheading an effort to have the Red Star Yeast plant closed, to secure the first-ever comprehensive testing of West Oakland's air quality, and to push the port's asthma-triggering traffic to use biodiesel fuel.

Politics aside, those goals should be attainable. A growing coalition of witnesses has complained that Red Star Yeast almost daily violates its own permit prohibiting strong odor emissions, saying the regional air district simply refuses to cite it. And by 1998, well-organized residents of Mossville, Louisiana, living among dioxin-producing refineries, not only had won comprehensive air testing but also won federally funded testing of residents themselves, which found acutely high blood levels of dioxin. As for eleiminating diesel, the technology is here: In September, Fort Bragg, California-based Thanksgiving Coffee Company announced that it would become one of the first private fleets in the nation to run all its trucks on biodiesel, joining Berkeley's Ecology Center and scores of other public fleets nationwide.

Judging by Chester Street's recent victories, success will not come solely via the courtroom or an EPA office. In 1998, with the help of Greenaction and others, the association led a defiant coalition to threaten direct action against the state Department of Transportation, forcing its Prescott Park cleanup to conform to higher standards. A year earlier across from the park construction site, the EPA had shut down the dioxin-producing incinerator of vinyl chloride only after similar threats.

"We told them we wanted the incinerator stopped, or we would shut it down," said Chester Street president Renee Morrison, noting that the EPA's lie about "salt and steam" infuriated residents. "We were prepared to turn the knob ourselves, so they shut it down."

Across town, well-timed protests also helped a coalition shut down the dioxin-producing Integrated Environmental System incinerator in 2002. The coalition tied up a pending permit by publicizing violations, and held regulators to their own stated policies. "But ultimately it was the direct action that won the IES campaign," Angel said, "And I think that's going to be true of these other campaigns as well. We're going to continue to point out the hypocrisy in all these agencies. We're still going to file a Title VI complaint against Red Star Yeast. But you use all tools at your disposal. Battles against pollution are going to be won - but no thanks to government agencies, and solely due to the efforts of communities and environmental justice groups. That's the moral of the story."

Justin Scheck is the editor of the Mountain View Voice.

Photos of Dave Harper, Mamie Harper of the Colorado Indian Reservation courtesy Greenaction; methyl bromide truck near La Jolla Elementary School outside Salinas, by Jeff Caton

A version of this article originally appeared in Terrain magazine, published by the Ecology Center in Berkeley, California. (510-548-2220 or www.ecologycenter.org)

The material appearing here is copyright Terrain magazine, which is published by the Ecology Center in Berkeley, California. (510-548-2220 x229). The material is to be circulated for educational purposes only, and is not to be reprinted in any publication, or distributed for commercial purposes, including copying for sale, without the permission of the editor of Terrain.